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TMI Blog2024 (7) TMI 1145X X X X Extracts X X X X X X X X Extracts X X X X ..... premises of J.K. Jain. After it the Income Tax Department in exercise of its power under Section 132A of the IT Act, called for these documents and material seized from the CBI. The assesee was asessesed at Bhilai, therefore, the said material was handed over to the AO sitting at Bhilai on 20.03.95. AO issued notice to assesee for reopening. The return of income was filled by the assesee on 06.06.95 however, the AO did not do anything till 20.12.95. On 20.12.95 the AO went to Delhi on receipt of some message of the DDIT (Inv.), amazingly the purpose of visit was for discussion about the case. The records of the proceedings clearly shows that the AO was taking instructions on each and every hearing and dictates was clearly given to him. Letter dated 30.01.96 which was written to the Commissioner of Income Tax, Central Revenue Building, Napier Town Jabalpur clearly shows that even the questionnaire was prepared on instruction of his superiors and same was even sent to Delhi for confirmation this clearly shows how far the AO was taking directions from his superior and not acted independently. In the said letter the AO has clearly written that though he has drafted the skeleton of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee. - HON'BLE MR. JUSTICE GOUTAM BHADURI AND HON'BLE MR. JUSTICE SANJAY KUMAR JAISWAL For Appellant (Revenue) : Mr. Ramakant Mishra, Dy. Solicitor General with Mr. Rishabh Dev Singh, Ms Jyoti Singh and Ms Shweta Rai, Advocates For Respondent (Assessee) : Mr. Ajay Vohra, Sr. Advocate (through Video Conferencing) with Mr. Vaibhav Shukla, Ms Astha Shukla, Mr. Himanshu Yadu, Mr. Rohit Jain, Mr. Aniket D. Agrawal and Mr. Abhishek Singhvi Advocates CAV JUDGMENT PER GOUTAM BHADURI, J. 1. Five appeals filed by the assessee against the order passed by the Commissioner of Income Tax (Appeals) {for brevity the CIT (A) } before the Income Tax Appellate Tribunal, Nagpur (for brevity the ITAT ). Since common issue was involved, all the appeals were considered and decided by the ITAT by a consolidated order dated 31-8-2004 by which the appeals preferred by the assessee were partly allowed whereas the appeal preferred by the Revenue was dismissed. Against the order passed by the ITAT, the Revenue preferred these appeals and the assessee has preferred the cross appeal. 2. Since all the appeals are arising out of same order dated 31-8-2004 passed by the ITAT they are being heard and decide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dditional DIT (Inv.), New Delhi and according to the AO the said diary found in possession of J.K. Jain belonged to the assessee S.K. Jain and was maintained as per direction of the assessee. e) Subsequently, the directions were received from the higher authorities. On the strength of the photocopies of aforesaid documents, notices were issued by the AO under Section 148 of the IT Act for the assessment year 1988-89 to 1992-93. f) The proceeding under Section 143 (3) read with Section 147 of the IT Act were completed and following income was assessed as under : Assessment year Income Assessed (₹) 1988-89 44,39,320=00 1989-90 2,58,94,870=00 1990-91 24,35,06,300=00 1991-92 23,69,02,210=00 1992-93 5,94,40,840=00 g) Being aggrieved by the assessment order the assessee preferred an appeal before the CIT (A) on various grounds including the validity of reassessment proceedings. The CIT (A) after hearing the parties vide its order upheld the order passed by the AO under Section 143 (3) read with Section 147 of the IT Act for all the years under consideration except allowing the relief to the assessee on the issue relating to the levy of interest under Section 139 (8) and Section 217 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is quite normal that the information would travel from wing to other by the officers that cannot be lead to show that the AO was working under the dictates of higher authorities. (ii) Learned counsel would submit that the AO being the part and parcel of the Income Tax Department has to take cognizance of the material supplied by the assessee for verification during the course of scrutiny proceedings and in the instant case the reassessment proceeding was initiated on the instance of material gathered which was collected by the CBI during the course of search conducted by them in connection with transfer of money to India through Hawala, therefore, unless such information received at higher end or transmitted and coordination is maintained the Department cannot function and in the instant case the similar things happened. (iii) Learned counsel would also submit that the Supreme Court in the matter of Vineet Narain Others v Union of India Another WP(Cri.) No.340-343 of 1993 (dated 30-1-1996) had directed the Government agencies to fairly, properly and fully investigate into every accusation against every person and all the agencies were directed to timely report to the Supreme Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... As such, the addition made by the AO ought to have been upheld by the ITAT instead of annulling the same. (vi) Learned counsel would submit that there is a difference between lack of jurisdiction and irregular exercise of power/jurisdiction by the AO. If the jurisdiction exercised by the AO was held to be proper, holding the reassessment proceedings to be valid then by no stretch of imagination the order passed by the AO can be annulled and the order could have been annulled only on the ground when it lacks of jurisdiction. In the instant case, admittedly, the AO had the entire jurisdiction, therefore, the question of law is required to be answered in favour of the Revenue. (vii) To buttress his contention, learned counsel would place reliance upon the decision rendered by the Supreme Court in the matter of Omar Salay Mohamed Sait v Commissioner of Income Tax (1959) 37 ITR 151 (SC), decision rendered by the High Court of Allahabad in the matter of S.K. Gupta Co. v Income Tax Anr. (2001) 165 CTR (All) 565 = (2000) 246 ITR 560 (All) and the High Court of Bombay in the matter of Commissioner of Income Tax v Bharatkumar Modi Ors. (2000) 164 CTR (Bom) 273 = (2000) 246 ITR 693 (Bom) = (2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enue and when the same were produced the ITAT came to a conclusion that the proceedings relating to case of assessee were illegally conducted and influenced by the higher authorities, who had no jurisdiction to do so under the law. Referring to various dates, learned counsel would submit that under Section 148 of the IT Act proceedings were initiated by the AO vide its order dated 30-3-1995 and it was only on the basis of part of seized documents which was considered relevant by the DDIT (Inv.) and in the aforesaid letter dated 20-3-1995, AO was also directed to start reassessment proceeding, therefore, there was no option left with the AO. On the contrary, the AO, who is the quasi judicial authority and is required to act independently and judiciously, could not have done so. (C) Learned counsel would submit that the return was filed under protest in June, 1995 and the entire denial was made with respect to any action or nexus with the seized documents. Thereafter, the Investigation Department at Delhi illegally usurped the power over the entire assessment proceedings to the complete exclusion of the AO, who was placed at Bhilai, Durg and it is the Delhi Investigation Department r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the AO to say that it is clearly been established that even the cross-examination was not allowed at the behest of the direction of the investigation agency at Delhi, therefore, the AO was completely working under the instructions of the higher authorities. (F) Learned counsel would further submit that the letter dated 20-3-1995 would show that selectively papers were sent by the Investigation Department, Delhi, therefore, no independent application of mind by the AO was applied about relevancy or non-relevancy of such paper. He would submit that at the instructions of superior officers of the CIT (A), the reopening was made and even the reasons were worked out and the note sheet would show, which is apparent from the order of the ITAT, that the AO did not form any opinion to reopen and the action of reassessment was suggested. (G) Learned counsel would submit that as per Section 153A of the IT Act (as then prevailing was) the reassessment should have been completed within two years and in the instant case the assessment year 1988-89 to 1992-93 continuously and notice under Section 148 was issued on 30-3-1995 so the proceedings of assessment further would be barred after March, 199 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inception of case hinges upon the reassessment order the question of law, which is framed at the instance of the assessee would have a substantial effect to the entire germane. Therefore, we would first go into whether the initial reassessment proceeding itself was proper or not. As would be evident after the initial assessment which carried out from 1988-89 to 1992-93 and was accepted all proceedings at a dormant stage. The reassessment triggered when the CBI search was made at others premises, not the assessee and certain documents were found at the place of one J.K. Jain. This led to investigation and filing of charge sheet in criminal cases. Few of documents so seized during search and seizure by the CBI were later on handed over to the Income Tax Department at Delhi. The Revenue after receiving documents, thought about reassessment at the relevant time. The AO was at Bhilai, not at New Delhi, so whether the AO had applied its mind independently to reassess ? The correspondence which has been referred to by the ITAT in its order reflect that the Government agencies were under the impression that money has been swindled, which led to criminal cases. All these state of affairs r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vestigate into every such accusation against every person, and to take the logical final action in accordance with law. 12. Reading of both the principles laid down by the Supreme Court, it is manifest that merits of the accusations would not give leverage to the authorities, but performance of the legal duty by the Government agencies to fairly, properly and fully investigate into every such accusation against every person, and to take the logical final action in accordance with law. 13. Section 132A (3) of the IT Act would purport that where any books of account, other documents or assets have been delivered to the requisitioning officer, the provisions of sub-sections (4-A) to (14) (both inclusive) of Section 132 and Section 132B shall, so far as may be, apply as if such books of account, other documents or assets had been seized under sub-section (1) of Section 132 by the requisitioning officer from the custody of the person referred to in clause (a) or clause (b) or clause (c), as the case may be, of sub-section (1) of Section 132A and as if for the words the authorised officer occurring in any of the aforesaid sub-sections (4-A) to (14), the words the requisitioning officer w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 132 (9A) and the part of documents were sent, therefore, the very inception of the proceeding in its entirety appears to be under the control of the DDIT (Inv.). 18. In the cross objection filed by the assessee, the substantial question of law was framed by this Court on 17-9-2014 that whether the ITAT erred in law in upholding initiation of reassessment proceeding under Section 147/148 of the IT Act ? 19. Perusal of the order of the ITAT would show that during the course of hearing before the ITAT the correspondence between the AO and the higher authorities including the DDIT (Inv.), New Delhi, and CIT, Jabalpur, who was the administrative controller of the AO of Bhilai, prior to date of initiation of reassessment proceeding were called for. The said proceeding was not provided to the assessee as it was claimed to be confidential, however, before the ITAT when the correspondence was placed they were allowed to be inspected by the assessee. 20. Perusal of the record and order would show that the documents received by the AO from the DDIT (Inv.), New Delhi, including the documents seized from J.K. Jain, report of CBI, appraisal report ADIT, New Delhi, was not provided to the as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It enacts that no orders, instructions or directions shall be given by the Board so as to interfere with the discretion of the Appellate Assistant Commissioner of Wealth Tax in the exercise of his appellate functions. It does not, however, imply that the Board may give any directions or instructions to the Wealth Tax Officer or to the Commissioner in exercise of his quasi-judicial function. Such an interpretation would be plainly contrary to the scheme of the Act and the nature of the power conferred upon the authorities invested with quasi-judicial power. x x x x 11) It is unnecessary to refer to any more entries made in the case sheet maintained by the Commissioner of Wealth Tax. From the inception of the proceedings the Commissioner of Wealth Tax put himself in communication with the Board of Central Revenue and sought instructions from that authority as to how the revision applications filed before him should be decided. He exercised no independent judgment. The Commissioner also recorded that the case did not require a personal hearing but since the Director of the Company had made a personal request for an interview it was thought desirable from the point of view of public re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sted to kindly initiate re assessment proceedings under the income tax and gift tax proceedings against Shri S.K. Jain, B.R. Jain, BECO or any other relevant persons for the relevant assessment years. For this purpose you may kindly go through the report of the CBI set out in Set IX identify the person in whose hands the proceedings under I.T. and G.T. Act had to be initiated, specify years where such income/gift would be taxable and work out reasons for reopening the assessment. You are also requested to please identify the items of root payments from the seized material which can be referred to regular books of account of BECO or other sister concerns of BECO so that quantum of receipt/payment can be cross checked and accordingly the seized material can be correctly deciphered. If considered necessary, matter can be discussed with the undersigned. We are also working out the case and we sent you copy of the investigation report at the earliest possible time. DDIT (Inv). 25. The ITAT in its order has also given the account of the documents which were annexed with aforesaid letter. It is pertinent to mention here that these documents were same set of documents which were sent to CI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n. He informed that their matters are fixed for hearing before Honourable Supreme Court. 28.3.95: Received a phone call from D.G. Shri. G.P. Garg, Delhi. He informed of the (not legible) aspect of the matter. Viz., (a) the reopening of the assessment of Shri S.K. Jain, B.R. Jain and BEC (b) submission of the report to settlement commission (not legible) appraising them the factual position and (c) Submission of detailed report to CBDT through CCIT Bhopal, by week end. 28.3.95: Received phone call from CIT Jabalpur who informed of his talk with Shri SP Garg, D.G. Delhi, he has been informed of the action to be taken. He expressed his satisfaction about the progress so far. 30.3.95: Recorded the detailed reasons u/s.148(2), 17(1) 16(1) of IT/WT/GT Act for issue of notices under various D. Taxes. 5.4.95: Received a phone call from CIT/DDIT (Inv.) informing the visit of Shri. D.C. Agarwal. It is informed by Shri Abhey Damble, ACIT that in the case Action Taken Report (ATR) is to be submitted to the (not legible) by the CIT and the said report to be submitted to the CIT showing action taken on the following aspects: (a) reopening of the cases-reasons to work out; (b) submission of the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... application for grant of permit nor could issue any order thereupon. Even any authority under the Act, including the appellate authority cannot issue any direction, except when the matter comes up before it under the statute. 31. The Supreme Court finally held that unwanted interference in the working of the statutory authority violates the constitutional scheme. The Court in para 20 held as under : 20. Factual matrix, as indicated hereinbefore, clearly goes to show that the fourth respondent filed the application before the Chief Minister straightaway. Office of the Chief Minister communicated the order of the Chief Minister, not once but twice. Respondent 2 acted thereupon. It advised the Regional Transport Authority to proceed, after obtaining a proper application from Respondent 4 in that behalf. This itself goes to show that prior thereto no proper application was filed before the Regional Transport Authority. Such an interference on the part of any authority upon whom the Act does not confer any jurisdiction, is wholly unwarranted in law. It violates the constitutional scheme. It interferes with the independent functioning of a quasi-judicial authority. A permit, if granted, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ome specific provision of law, which authorises their acts. A Constitution Bench of this Court in Bishan Das v. State of Punjab [AIR 1961 SC 1570 : (1962) 2 SCR 69] held that the State or its executive officers did not have any right to take law into their own hands and remove a person by an executive order. The Court further observed: (SCR p. 80) Before we part with this case, we feel it our duty to say that executive action taken in this case by the State and its officers is destructive of the basic principle of the rule of law. 36. However it is equally true that when the authority is vested with the power it has duty to exercise it and adherence to said rule is important facet to administration of justice. The Revenue raised the argument that effective functioning of the revenue department requires coordination monitoring and superintendence. However what required to be seen is that General power of superintendence must be distinguished from the interference in the adjudication process. The authority in which a discretion is vested can be compelled to exercise that discretion, but not to exercise it in any particular manner the principle has been recognised by the Supreme Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llowing directions of Board of Revenue is surrendered his judgment to the directions of the Board of Revenue the Supreme Court has highlighted thus at para 5 : 5. The Commissioner appears, in our judgment, to have wholly misapprehended the true character of the jurisdiction with which he is by the Act entrusted and has surrendered his judgment to the directions of the Board of Revenue. The order sheet of the Commissioner (at pp. 10-36 of the printed Paper-Book) bears eloquent testimony to the manner in which the Commissioner has merely carried out the directions of the Board of Revenue, instead of deciding the case according to his own judgment. 38. The Tribunal in its order after considering the material available on records come to a wrong finding that the time gap the AO revived information and reasons recorded to reassess would not be fatal and despite the fact no reasons were recorded or evidence is available, which cannot be stated that reassessment was an independent decision. This finding of the ITAT fall short of the principles laid down when the events of facts have to be seen as a whole. One fact cannot be picked up to isolate the other set of facts like cherry picking. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... That, in the common law adherence to the principles of natural justice has been given utmost importance as it is a requirement of the adjudication that it must be just reasonable and fair to all the parties who comes for the adjudication. Requirement of neutrality in adjudication is requirement of due process. Biased decision maker constitutionally unacceptable but our system of the rule against bias is also aspect of Natural Justice which is based upon the maxim Nemo judex in sua causais ( no-one is a judge in his own cause which also give rise to the to the principle that justice must not only be done, but it must also be seen to be done. Lord Hewart, C.J. in R. v. Sussex JJ., ex p McCarthy [(1924) 1 KB 256], KB (p. 259) wherein he said: it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done. 46. The classic case which falls for consideration before the English Courts was Dimes v. Grand Junction Canal (1852) 3 HLC 759 : 10 ER 301, In the aforesaid case Lord Cottenham presided over a previous case in which a canal company brought a case in equity against a land owner. Lord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of Lords, in recognition of this discrepancy, has now made 'a modest adjustment to the real danger test and ensured consistency between the Convention and the common law. The case concerned a leading counsel, a recorder, who had been appointed by the Lord Chancellor to serve as a part-time judge in the Employment Appeal Tribunal. He was briefed to appear before an EAT which included lay members who had previously sat with him in his role as judge. The test of bias laid down was 'whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased'. Applying this test the House of Lords concluded that it was reasonably possible that that observer might consider that the recorder's submissions would carry particular weight, perhaps subconsciously, with the lay members with whom he had sat in the past. 48. Position of law is more or less similar in India the decision of the Supreme Court in N.K. Bajpai v. Union of India (2012) 4 SCC 653 is worth reading : 55. The courts have applied the tests of real likelihood and reasonable suspicion. These doctrines were discussed in S. Parthasara ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt has laid down that the test is not whether in fact, a bias has affected the judgment; the test always is and must be whether a litigant could reasonably apprehend that a bias attributable to a member of the tribunal might have operated against him in the final decision of the tribunal. It is in this sense that it is often said that justice must not only be done but must also appear to be done. 50. The Supreme Court in the matter of P.D. Dinakaran (1) v. Judges Inquiry Committee (2011) 8 SCC 380, (2011) 8 SCC 380 : held thus : 65. In G. Sarana (Dr.) v. University of Lucknow [(1976) 3 SCC 585 : 1976 SCC (L S) 474] the Court referred to the judgments in A .K. Kraipak v. Union of India [(1969) 2 SCC 262] , S. Parthasarathi v. State of A.P. [(1974) 3 SCC 459 : 1973 SCC (L S) 580] and observed: (G. Sarana case [(1976) 3 SCC 585 : 1976 SCC (L S) 474], SCC p. 590, para 11) 11. the real question is not whether a member of an administrative board while exercising quasi-judicial powers or discharging quasi-judicial functions was biased, for it is difficult to prove the mind of a person. What has to be seen is whether there is a reasonable ground for believing that he was likely to have be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e deaths occurred before 1st July, 1960. The appellate functions of the Central Board of Revenue which was also the controlling estate duty authority were criticized by the Taxation Enquiry Commission which, however, recommended no change. The Commission thought that the provisions laid down, that in his appellate functions, the Appellate Assistant Commissioner should be free from the control of the Board, and the latter should not give him any order, instruction, or direction were not sufficient, because, he could not be expected to get over the compulsion of being a part of the Department, as for his promotion he must be dependent on the Board. The Commission added as follows: We think that the experiment begun in 1939 should be carried forward and the Appellate Assistant Commissioners should be removed from the control of the Commissioners and the Central Board of Revenue. Their leave, transfer and posting should be in the hands of the Tribunal. Here it may be worth stating that under the American Administrative Procedure Act it seems to have been made an advance in the direction of separating the department from the adjudicative agencies on the basis of the recommendations of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... must be free from any kind of bias. The true test of bias is not whether the judge is actually biased or not, but whether there is a real danger of bias from the view point of fair-minded and informed observer (N.K. Bajpai Case) 55. The common thread which passes through in all these questions is whether the AO has passed the final order in reassessment on the dictates/directions of the superior authority. The ITAT in its judgment has arrived to the finding considering various material available on record that the AO has passed the order against the assessee on the dictates of his superiors. 56. Learned counsel for the Revenue though argued that since the matter regarding the Jain dairy was pending before the Supreme Court and as the Supreme Court has passed some specific directions in the Vineet Narain case, therefore, it was important for the officers sitting at Delhi and Jabalpur to have superintendence over the progress of the proceedings and the same cannot be said to be the interference or passing order on dictates. 57. Bare perusal of order shows that the Supreme Court has not directed to take action in any particular matter rather the intention of the Apex Court was that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IT who also communicated that the assessments for IT ad WT are to be completed. Only the assessments under the GT are to be kept pending. Accordingly a detailed reply to assessee's letter dated 5.2.96 is issued on the basis of draft letter received from Shri D.C. Agrawal, through CIT/Jabalpur through fax. 27.2.96: A sealed cover addressed to Shri D.C. Agrwal, Addl. DIT was handed over to Shri H.L. Vaddadi, ITI for delivering the same by speed post at Raipur, Head Post Office. The sealed cover contains the replies to Shri S.K. Jain's letter (reply to notice) dt. 5.2.96 along with acknowledgment slip which has been duly sealed and signed. 28.2.96: Shri H.L. Vaddadi, ITI informed that the sealed envelope containing the above has been delivered to HPO for sending it to Addl. DIT, Shri Agrawal by Speed Post vide Ack.No.5358 dt. 28.2.96 which is placed on record. 29.2.96: Shri D.C. Agrawal, Addl. DIT, Delhi informed that he had not received the above till 6.00 PM who was informed by the undersigned that the delivery of the dak could be affected only by tomorrow by 12 noon. He desired to have a set of the contents of the envelope to be sent by FAX which has been so transmitted to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e's reply have been transmitted through FAX to the Directorate of Inspection (Investigation) along with the covering letter dated 10.3.1996. 20.3.96: Shri D.C. Agrawal, Addi. DIT (Inv.), Delhi telephonically informed that the case cannot be further prolonged on the basis of contentions raised by the assessee in his letters dated 7.3.96 and 8.3.96. He further communicated that the undersigned should camp at Delhi for the completion of the assessment orders, so that the assessment orders along with the demand notice, challan etc. be served upon the assessee in the first week of April, 96 as desired by the DG(Inv.), since the Hon'ble Supreme Court has posted the case for hearing on 9th April, 1996. It has been explained to him that in view of the other time barring assessments pending in this Range, it is very difficult for the undersigned to camp at Delhi from 25th as suggested by him. 22.3.96: The Hon'ble CIT, Jabalpur telephonically directed that I have to proceed to Delhi on 28th March, 96 as he has received the message from Higher Authorities in Delhi and Bhopal to that effect. He further directed that I should report on 29th March, 96 in the Investigation Directorate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wal for affecting the service upon the assessee. 61. The records of the proceedings clearly shows that the AO was taking instructions on each and every hearing and dictates was clearly given to him. 62. That, even more interesting account has been given in the letter dated 30.01.96 which was written to the Commissioner of Income Tax, Central Revenue Building, Napier Town Jabalpur same is reproduced herein : To, The Commissioner of Income Tax, Central Revenue Building, Napier Town, Jabalpur (MP). Attention: Shri Abhay Damle, ACIT(Hqrs.). Sir, Sub-Monitoring of the assessment by Hon'ble CIT in the case of Shri S.K. Jain under Income tax, Wealth-tax and Gift-tax Deliberation of the conference with Hon'ble DG(Inv.), Delhi on 22nd December, 1995-Report-Regarding As directed by the Higher Authorities of the Directorate of Investigation, Delhi as conveyed through Shri. D.C. Agrawal, Addl. DIT (Inv.), I had been to the Directorate from 21st Dec.95 to 29th Dec.,95 in connection with the taking over the seized material and other documents collected during the investigation by the Addl. DIT (Inv.). On 21st Dec., 95 at 3.30 PM I had a conference with the DIT alongwith Shri D.C. Agrawal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9.1.96, so that the service could be effected on or before 10.1.96, on which date the Hon'ble Supreme Court had fixed the case for hearing. The notices issued for assessment years 1988-89 to 92-93 under section 142 (1) and 143 (2) of Income-tax Act, 1961 alongwith detailed questionnaire as also statutory notice u/s 16 (2) alongwith detailed questionnaire under the Wealth-tax Act, 1957 have been kept in the Paper Book prepared for submission to the Hon'ble Settlement Commission, a copy of which has already been submitted to you. Presently the hearing of the case both under Income-tax and Wealth-tax has been fixed on 5th February, 1996. As transpired in the conference with Hon'ble DG, these assessments are required to be completed expeditiously as far as possible by the end of February, 1996. However, the same would depend on the assessee's response to these notices. In this regard, I may mention that presently the evidences collected in the form of testimonies of various witnesses are utilized by the A.O. as it is, as decided in the conference, but in case the assessee demands cross examination, the said exercise would be required to be carried out here also, which m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iminal cases which he is facing as per the list appended with the reply must take precedence over the Civil proceeding i.e. assessment proceedings under IT WT. Under these circumstances I solicit the valuable guidance of the higher authorities viz. DIT/DG(Inv) in the matter so that any legal infirmity in the assessment order be properly taken care of. I may mention that I have drafted the basic skeleton of the order which could only be concluded after meeting out the various legal contentions raised by the assessee in his reply referred to above. On the basis of aforementioned facts I am of the opinion that the assessee may be allowed to get one more opportunity and by adjourning the case by one month as requested for by him. Further proceedings shall be taken after hearing from you which may kindly be expedited at your end. (underlining by us.) Yours faithfully, (K.M. Verma) Dy. Commissioner of IT, (Asst.) Special Range, Bhilai 65. In the said letter the AO has clearly written that though he has drafted the skeleton of the order but he want guidance of the higher authorities so that legal infirmity in the assessment can be taken care of these phrases speaks a dozen about how far t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntioned above the appeal and the revision had been rejected by the Collector and the Central Government on the ground that a direction had been issued by the Central Board of Revenue to the effect that the paper in question be treated as belonging to a particular classification. This Court entertained no doubt that the direction given by the Board was invalid and it vitiated the proceedings before the Collector as well as the Government. Similarly in the present appeal the direction given by the Collector was invalid and the proceedings before the Deputy Superintendent or the Assistant Collector were vitiated. This position obtains in all the appeals although the type and quality of paper are different. The Central Government merely affirmed the order made by the Collector in each case and did not give any independent reasons for upholding the levy of duty made in accordance with the directions of the Collector. 69. That, the officers sitting at Delhi and Jabalpur has even interfered in the order especially the guidance has been sought by the AO to deal with the grounds raised by the assessee. In Re Sawyer and Ontario Racing Commission 99 DLR (3d) 561 (Onterio Curt of Appeal) the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... means the law is hard but it is the law , stands attracted in such a situation. It has consistently been held that, inconvenience is not a decisive factor to be considered while interpreting a statute. A result flowing from a statutory provision is never an evil. A court has no power to ignore that provision to relieve what it considers a distress resulting from its operation. ( See Martin Burn Ltd. v. Corpn. of Calcutta [AIR 1966 SC 529], AIR p. 535, para 14 and Rohitash Kumar v. Om Prakash Sharma [(2012) 13 SCC 792 : AIR 2013 SC 30].) 75. The Supreme Court in CIT v. U.K. Paints (Overseas) Ltd. 2023 SCC OnLine SC 818, held as under :- 1) In this batch of appeals, the assessments in case of each Assessee were under Section 153-C of the Income Tax Act, 1961 (for short, the Act ). As found by the High Court in none of the cases any incriminating material was found during the search either from the Assessee or from third party. In that view of the matter, as such, the assessments under Section 153-C of the Act are rightly set aside by the High Court. However, Shri N Venkataraman, learned ASG appearing on behalf of the Revenue, taking the clue from some of the observations made by thi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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